Fines Enforcement and Debt Recovery Bill

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (17:37): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Today I introduce the Fines Enforcement and Debt Recovery Bill 2017 (the Bill).

The Bill's primary purpose is to consolidate and refine the provisions for enforcing and recovering fines and expiation fees that are currently located in the Criminal Law (Sentencing) Act 1988 and the Expiation of Offences Act 1996. A major innovation is that the Bill also enables the Fines Enforcement and Recovery Officer (FERO) (whose title will be changed to 'Chief Recovery Officer' (CRO)) to recover civil debt owed to the Government.

The Statutes Amendment (Fines Enforcement and Recovery) Act 2013 and the new Fines Enforcement and Recovery Unit (Fines Unit) of the Attorney-General's Department commenced operation on 3 February 2014. In the period since commencement of the Fines Unit, a number of operational difficulties have arisen, and omissions and other issues have been identified, in respect of the legislation as it was amended. As a result, a number of proposals have been made for improving the legislative regime for fines enforcement and recovery, including suggestions from the FERO, SAPOL and the Magistrates Court.

Following the introduction of the Bill in the House of Assembly, the Government undertook an extensive consultation program on the Bill. The feedback received during consultation is under consideration. Should any changes be needed to the Bill as a result of the consultation, I will move such amendments as may be necessary in this House as soon as possible.

Most of the numerous proposed amendments in the Bill are technical and operational in nature and duplicate provisions already in the two existing Acts. Consequential amendments to other legislation are also proposed.

There are several amendments of a more substantive nature that recognise the vulnerable position of some debtors or, in other cases, strengthen the CRO's ability to recover debt.

In cases of financial hardship, debtors will (in appropriate cases) be able to enter into voluntary agreements with the CRO to offset their outstanding debts by performing community service or attending intervention or treatment programs for behavioural problems, problem gambling, substance abuse or mental impairment. However, the CRO will also have a new power to terminate any payment arrangement where satisfied that the debtor now has a greater capacity to pay the amount outstanding without the debtor or the debtor's dependants suffering hardship.

The Magistrates and Youth Courts will have new powers in cases of financial hardship to order debtors to attend intervention programs. They can currently order debtors to perform community service. The Courts' powers in this regard are exercisable on application by the CRO when the CRO's efforts to enforce and recover the debt have failed. The regulations will prescribe the manner in which attendance at an intervention program will reduce the amount of the outstanding debt. The Bill also removes the current upper limit of 500 hours of community service that can be ordered by the Courts so that, potentially, the whole of a person's debt could be dealt with by a single order for community service made by the Court. This will avoid the need for the CRO to make multiple applications to the Court for successive orders for community service.

Issuing authorities will be able to withdraw expiation notices if the alleged offender has a cognitive impairment or an intellectual disability. This measure implements one of the aims of the Government's Disability Justice Plan.

Provisions are included in the Bill in respect of people who persistently drive unlicensed, and incur fines or expiation fees for that offending, to provide incentives for them to break the cycle of offending. A person who shows that they have obtained a driver's licence since commission of the alleged offence may be able to enter into voluntary payment arrangements with the CRO or have the whole or part of their debt waived.

Compensation and restitution payments will now have priority ahead of the Victims of Crime levy when payment is made on an outstanding debt. This will ensure that victims have quicker access to compensation and restitution payments than is presently the case.

A new enforcement power will enable the seizure of a person's number plates, e.g. if it is not economical to seize or clamp the vehicle itself. Also, as an additional enforcement measure, a provision is included in the Bill that would permit the CRO to suspend the operation of the visiting motorist rights conferred under section 97A of the Motor Vehicles Act 1959 where an interstate driver has unpaid fines or expiation fees in this State. Such a person will not be able to drive in this State on an interstate driver's licence until the CRO cancels the suspension.

The offences in the existing legislation regarding interference with a clamped vehicle or with the clamp itself are not consistent. The Bill remedies that situation.

The Bill also refines the provisions for revocation of an enforcement determination for an expiation notice and for appeals from those decisions. The new provisions make it clear that a person cannot apply to revoke an enforcement determination, or appeal the CRO's refusal to revoke an enforcement determination, if they have previously had reasonable opportunity to exercise their rights to elect to be prosecuted for the alleged offence or to apply for a review of the expiation notice by the issuing authority on the grounds that the alleged offence is trifling. One of the other grounds for applying to the CRO to revoke an enforcement determination is amended to make clear that failure to receive a notice means failure to receive both the relevant expiation notice and the subsequent expiation reminder notice sent to the person.

Given the prevalence of email communications in the community, the Bill will allow the CRO to give a document to a person by means of an email address provided to the CRO by the person.

Other new provisions will allow the Minister to enter into an agreement with other Australian jurisdictions to establish and implement processes and procedures for the enforcement in other jurisdictions of expiation notices given in this State and the enforcement in this State of the equivalent of expiation notices given in other jurisdictions.

The Bill carries forward existing provisions to the effect that the costs of taking enforcement action are added to and form part of the monetary amount owed by the debtor. However, it is convenient to prescribe in regulations the fee payable for action to suspend a driver's licence or restrict transactions with the Registrar of Motor Vehicles. These are among the most common enforcement actions taken by the Fines Unit and a prescribed fee would relieve the administrative burden of having to calculate the costs of taking such action on each individual case.

Part 8 of the Bill confers on the CRO the power to enforce civil debt owed to the Government. The Government considers that the CRO is best placed to consolidate whole-of-Government debt recovery efforts. The CRO will be able to collect civil debt owed to the Government that is referred to the CRO for collection by public authorities. This might include, for example, debts owed to SA Water, SA Health, the SA Ambulance Service, Housing SA, TAFE SA and the Department for Education and Child Development and other bodies meeting the definition of public authority in the Bill. The CRO would only be able to exercise his or her powers in respect of debts that are within the monetary jurisdictional limits of the Magistrates Court, currently $100,000 or less.

It will not be necessary for a debt owed to the Government to be first proved by way of a judgment in a civil debt action. Civil debt actions currently taken by Government to obtain a judgment are generally not defended. In a recent 12-month period, only 1.5% of such judgments were defended. The need to obtain a judgment in every case is therefore unwarranted, and unnecessarily costly and time-consuming. These actions would currently be pursued in the Magistrates Court (up to $100,000 in value) or in the District Court.

A person who disputes that they owe the relevant debt will be able to make an application the Magistrates Court for determination of the matter. Appellants suffering financial hardship are able to have application fees waived or reduced by the Court.

The CRO will be able to exercise powers that are the same as the powers currently available to a court in respect of monetary judgments under the Enforcement of Judgments Act 1991, namely investigation of a debtor's financial position and means to satisfy the debt, payment by instalments, garnishment, seizure and sale of property (excluding property that could not be taken in bankruptcy proceedings) and taking a charge over property. The CRO will also be able to enter into voluntary payment arrangements with civil debtors in appropriate cases. The CRO will however not be able to exercise the powers in the Enforcement of Judgments Act 1991 to issue a warrant for the arrest of any person, or to commit a debtor to prison for non-payment of the debt, or to appoint a receiver. The CRO will need to apply to the Magistrates Court for the exercise by the Court of these excluded powers.

A debtor will have a right to seek an internal review of a decision by the CRO to exercise particular enforcement powers, and ultimately will have a right of review by the Magistrates Court. This review right is necessary because currently, under the Enforcement of Judgments Act 1991, a debtor would have the opportunity to make submissions to the Court in response to the creditor's application for enforcement powers. Internal review rights are also given to garnishees.

The Government expects that the positive impacts that will arise as a result of the civil debt recovery provisions in the Bill include achieving efficiencies by centralising the work currently undertaken in multiple agencies to recover debts owed to Government and achieving economies of scale in contractual arrangements with commercial debt collectors. These changes will also enable a holistic approach to be taken to individual debtors as persons in hardship often owe substantial debt across multiple Government agencies.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Operation of the measure is to commence on a day to be fixed by proclamation.

3—Interpretation

This clause sets out definitions of various terms used in the measure.

Part 2—Chief Recovery Officer

4—Chief Recovery Officer

This clause provides for the office of Fines Enforcement and Recovery Officer (established under the Criminal Law (Sentencing) Act 1988) to continue as the Chief Recovery Officer. The Chief Recovery Officer is to carry out functions under the Act in addition to carrying out other functions assigned by or under another Act or law or by the Minister.

5—Delegation

The Chief Recovery Officer is authorised under this clause to delegate powers or functions to a person, a committee or a person for the time being performing particular duties or holding or acting in a particular position. The clause specifies that the person to whom a power or function is delegated may be a body corporate.

6—Certain determinations may be made by automated process

This clause authorises the Chief Recovery Officer to determine that a class of determinations that he or she is required to make is of such a nature that they could appropriately be made by means of an automated process. A determination made by an automated process in accordance with the clause will be taken in any proceedings to be a determination of the Chief Recovery Officer.

7—Annual report

This clause requires the Chief Executive of the relevant administrative unit to submit an annual report to the Minister. The report is to include information prescribed by the regulations or required by the Minister. A copy of the report is to be laid before each House of Parliament.

Part 3—Enforcement of pecuniary sums

Division 1—Preliminary

8—Pecuniary sum is debt

This clause provides that a pecuniary sum due and payable is a debt due to the Crown. As such, it is recoverable by the Chief Recovery Officer by action in a court of competent jurisdiction or as otherwise set out in the measure.

9—Amounts due under expiation notices may be treated as part of pecuniary sum

The Chief Recovery Officer can make an aggregation determination under this clause in relation to a person who owes a pecuniary sum in addition to having an amount due under an expiation notice. The effect of the determination is as follows:

the expiation amount will be taken to be part of the pecuniary sum owed by the debtor;

the debtor will, for the purposes of an Act or law other than this Act or the Expiation of Offences Act 1996, be taken to have expiated the offence or offences to which the determination relates (unless the debtor is already taken to have expiated the offence under clause 20(21) or 22 (but this provision operates subject to the regulations);

any enforcement determination made in relation to the expiation amount is suspended.

An aggregation determination may only be made if the debtor has requested it or an enforcement determination has been made in relation to the expiation amount under clause 22.

If an amount due under an expiation notice is included in an aggregation determination and the expiation notice is withdrawn, the expiation amount is to be deducted from the amount due under the aggregation determination. An aggregation determination may be revoked at any time by the Chief Recovery Officer. If an aggregation determination is revoked, the following provisions apply:

the remaining expiation amount is to be determined by the Chief Recovery Officer, taking into account any necessary deductions or additions;

the expiation amount determined by the Chief Recovery Officer will no longer be taken to be part of the pecuniary sum;

if an enforcement determination had been made prior to the making of the aggregation determination, the enforcement determination will come back into force;

otherwise, the Chief Recovery Officer may make an enforcement determination in relation to the remaining expiation amount under clause 22.

10—Enforcement against youths

The measure applies to a debtor who is a youth. However, the youth or the Chief Recovery Officer may apply, at any time, to the Youth Court for the making of a community service order in respect of the youth (as if clause 46 applied in respect of the pecuniary sum). A youth is a person who was under the age of 18 years at the time when the offence in respect of which the pecuniary sum was imposed was committed.

Division 2—Payment of pecuniary sums

11—Pecuniary sum is payable within 28 days

A pecuniary sum imposed by order of a court is payable within 28 days from (and including) the day on which the order was made. However, this operates subject to any arrangement under clause 15, which provides for the making of arrangements as to the manner and time of payment of pecuniary sums.

12—Payment of pecuniary sum to Chief Recovery Officer

A pecuniary sum is payable to the Chief Recovery Officer or an agent appointed by the Chief Recovery Officer. An amount of a pecuniary sum received by the Chief Recovery Officer is to be dealt with as follows;

firstly, if the sentencing court has ordered the defendant to pay any amount by way of compensation or restitution to a particular person, payment is to be made to that person in satisfaction of the amount;

secondly, if a VIC levy is payable by the defendant, payment is to be made into the Victims of Crime Fund in satisfaction of that levy;

thirdly, if any costs are payable to a party to the proceedings, payment is to be made in satisfaction of those costs;

fourthly, if any other money is payable under the order of the court to the informant, payment is to be made to the informant;

fifthly, according to the directions of any other Act or, if no other Act contains directions as to payment, payment is to be made to Treasury.

13—Payment by credit card etc

This clause provides that a pecuniary sum may be paid by using a credit card, charge card or debit card if facilities for their use are available in relation to the payment to be made.

14—Amounts unpaid or unrecovered for more than certain period

If a part of a pecuniary sum is unpaid or unrecovered on the expiration of the 28 day period referred to in clause 11, an amount prescribed by the regulations is to be added to and form part of the pecuniary sum. If a part of a pecuniary sum is unpaid or unrecovered on the expiration of the 30 day period commencing immediately after the initial 28 day period, a further prescribed amount is to be added to and form part of the pecuniary sum payable by the debtor.

15—Arrangements as to manner and time of payment

This clause authorises the Chief Recovery Officer to enter into arrangements with debtors for the payment of pecuniary sums by instalments over a period of up to 12 months determined by the Chief Recovery Officer. Other types of arrangements are also authorised under the clause, such as:

payment by instalments (including instalments paid over a period exceeding 12 months);

an extension of time to pay;

the taking of a charge over land;

the surrender of property to the Chief Recovery Officer;

payment of any amount, including by direct credit, by or through some other person or agency (eg deductions from an ADI account or wages);

requirements for the performance of community service by the debtor (in accordance with a scheme prescribed by the regulations);

an arrangement for the debtor to complete an intervention program;

any other form of arrangement agreed by the Chief Recovery Officer and the debtor.

If the Chief Recovery Officer is satisfied that a debtor who has entered into an arrangement has the capacity to pay any outstanding amount of the pecuniary sum without the debtor or the debtor's dependants suffering hardship, the Officer may terminate the arrangement. If a debtor fails to comply with an arrangement and the failure has endured for 28 days, the arrangement terminates. An arrangement that has terminated may be reinstated by the Chief Recovery Officer. If the Chief Recovery Officer is satisfied that a debtor has completed, or substantially completed, an intervention program pursuant to an arrangement, the Officer must waive payment of the whole or part of the amount payable by the debtor in accordance with the arrangement.

16—Arrangement or waiver for debtor who has persistently driven unlicensed

Under this clause, the Chief Recovery Officer may either enter into an arrangement with a debtor under clause 15 or waive payment of a pecuniary sum or any part of a sum if satisfied that—

the pecuniary sum payable is by the debtor because of the commission of an offence against section 74 of the Motor Vehicles Act 1959; and

the debtor has been found guilty of, or has expiated, the same offence on more than two occasions; and

the debtor has obtained a driver's licence.

17—Publication of names of debtors who cannot be found

This clause provides that, if the whereabouts of a debtor cannot be ascertained (after reasonable enquiries), the Chief Recovery Officer may cause a notice to be published on a website determined by the Chief Recovery Officer, and in such other manner (if any) as the Chief Recovery Officer thinks fit, seeking information as to the debtor's whereabouts.

18—Reminder notice

This clause requires the Chief Recovery Officer to give a reminder notice to a debtor if the debtor has not paid a pecuniary sum or entered into an arrangement in respect of the sum at the end of the 28 day period from the making of an order imposing a pecuniary sum. A prescribed reminder notice fee is to be added to and form part of the pecuniary sum unless the Chief Recovery Officer determines to waive the fee.

19—Enforcement action

The Chief Recovery Officer may take enforcement action under this clause if a debtor has not paid a pecuniary sum within 14 days after receiving a reminder notice or if an arrangement has not been entered into under clause 15. Enforcement action may also be taken if such an arrangement has terminated. In taking enforcement action, the Chief Recovery Officer may determine to enter into an arrangement with the debtor under clause 15, exercise a power under Part 7 or waive payment of the pecuniary sum or part of the pecuniary sum. The Chief Recovery Officer may also write off the pecuniary sum if satisfied there is no reasonable prospect of recovering the sum or the costs of recovery are likely to exceed the amount to be recovered.

Part 4—Payment of expiation fees

20—Arrangements as to manner and time of payment

This clause authorises the Chief Recovery Officer to enter into payment or other arrangements with alleged offenders who have been given expiation notices. An arrangement may be for payment of the amount due under an expiation notice to be paid by direct debit instalments. The clause also sets out other kinds of arrangements, as follows:

payment by instalments (including instalments paid over a period exceeding 12 months);

an extension of time to pay;

the taking of a charge over land;

the surrender of property to the Chief Recovery Officer;

payment of any amount, including by direct credit, by or through some other person or agency (eg deductions from an ADI account or wages);

requirements for the performance of community service by the alleged offender (in accordance with a scheme prescribed by the regulations);

an arrangement for the alleged offender to complete an intervention program;

any other form of arrangement agreed by the Chief Recovery Officer and the alleged offender.

If the Chief Recovery Officer is satisfied that an alleged offender who has entered into an arrangement has the means to pay an enforcement amount without the alleged offender or the alleged offender's dependants suffering hardship, the Officer may terminate the arrangement. If an alleged offender fails to comply with an arrangement and the failure has endured for 28 days, the arrangement terminates. An arrangement that has terminated may be reinstated by the Chief Recovery Officer. If the Chief Recovery Officer is satisfied that an alleged offender has completed, or substantially completed, an intervention program pursuant to an arrangement, the Officer must waive payment of the whole or part of the amount payable by the alleged offender in accordance with the arrangement. If an alleged offender complies with an arrangement requiring the performance of community service, the amount outstanding is to be reduced in accordance with a method prescribed by the regulations.

An alleged offender who enters into an arrangement will be taken to expiate the offence or offences to which the arrangement relates on the day on which the arrangement is entered into (unless the alleged offender is already taken to have expiated the offence in accordance with another clause). This applies subject to the regulations but irrespective of whether the arrangement is subsequently discharged or terminates before being discharged.

21—Arrangement or waiver for alleged offender who has persistently driven unlicensed

Under this clause, the Chief Recovery Officer may either enter into an arrangement with a debtor under clause 20 or waive payment of an amount due or any part of an amount due if satisfied that—

the amount due under the expiation notice is payable by the alleged offender because of the commission of an offence against section 74 of the Motor Vehicles Act 1959; and

the alleged offender has been found guilty of, or has expiated, the same offence on more than two occasions; and

the alleged offender has obtained a driver's licence.

22—Enforcement determinations

This clause provides that an expiation notice may be enforced against an alleged offender by the issuing authority providing to the Chief Recovery Officer certain particulars relating to the alleged offender, the offence or offences, the amount due and the authority's compliance with relevant legislation. The Chief Recovery Officer may make an enforcement determination in relation to an expiation notice if the following has occurred within the relevant period:

the Chief Recovery Officer has received the necessary particulars from the issuing authority;

14 clear business days have elapsed from the date on which a reminder notice or enforcement warning notice relating to the expiation notice was given to the alleged offender under the Expiation of Offences Act 1996.

The relevant period is the period ending 90 days after the end of the expiation period or such longer period as the Chief Recovery Officer allows.

An enforcement notice may also be made by the Chief Recovery Officer if an arrangement under clause 20 relating to the notice has terminated and the Chief Recovery Officer has received the necessary particulars within the period of 30 days after the day on which the arrangement terminated.

The alleged offender will, on the making of an enforcement determination, be taken to have expiated the offence or offences to which the enforcement determination relates (unless the alleged offender is already taken to have expiated the offence in accordance with another clause). (This operates subject to the regulations.)

An enforcement determination may be varied or revoked by the Chief Recovery Officer. Revocation may occur on application made within 30 days of notice of an enforcement determination being given, sent or published as required under the section or on the Chief Recovery Officer's own initiative. There are limited grounds on which an application for revocation of an enforcement determination may be made, as follows:

the expiation notice to which the determination relates should not have been given to the applicant in the first instance (other than because the alleged offender did not commit, or has a defence against, the alleged offence);

the alleged offender did not have a reasonable opportunity to elect under section 8 of the Expiation of Offences Act 1996 to be prosecuted for any offence to which the expiation notice relates;

the alleged offender did not have a reasonable opportunity to apply for review of the expiation notice to which the determination relates under section 8A of the Expiation of Offences Act 1996;

the procedural requirements of the Act or any other Act were not complied with;

the applicant failed to receive an expiation notice and an expiation reminder notice as required;

the issuing authority failed to receive—

a notice sent to the authority by the applicant electing to be prosecuted for the offence; or

a statutory declaration or other document sent to the authority by the applicant in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or

the applicant has expiated the offence, or offences, under the notice.

There is no requirement for the Chief Recovery Officer to conduct a hearing for the purposes of making, varying or revoking an enforcement determination.

23—Review by Court of refusal to revoke enforcement determination

This clause provides for review by the Court (ie, the Magistrates Court or Youth Court) of a decision of the Chief Recovery Officer to refuse an application for revocation of an enforcement determination where the ground of the application was that the alleged offender did not have a reasonable opportunity to elect to be prosecuted for the relevant offence or to apply for review of the expiation notice to which the determination relates. If the Court reverses the decision to refuse the application, the enforcement determination will be taken to be void and of no effect and any subsequent enforcement action will be taken to have been revoked. The Chief Recovery Officer may make a further enforcement determination if the alleged offender does not elect to be prosecuted or apply for review of the expiation notice within 14 days of being informed of the Court's determination.

24—Expiation fee is debt

This clause provides that an amount due under an expiation notice where an enforcement determination has been made by the Chief Recovery Officer is (if the enforcement determination has not been revoked) a debt due to the Crown and is recoverable by the Chief Recovery Officer by action in any court of competent jurisdiction or as otherwise set out in the Act.

25—Enforcement actions by Chief Recovery Officer

If an enforcement determination has been made by the Chief Recovery Officer, the Chief Recovery Officer may—

enter into an arrangement, or further arrangement, with the alleged offender under clause 20; or

register a charge on land under Part 6; or

exercise a power under Part 7; or

waive payment of the amount due or any part of the amount due.

26—Amounts unpaid or unrecovered for more than certain period

This clause provides for a prescribed amount to be added to the amount due under an expiation notice if the Chief Recovery Officer makes an enforcement determination in relation to the notice. A further amount is added to the amount due if any part of it remains unpaid by, or unrecovered from, the alleged offender, at the end of 30 days (but payment of either of these amounts may be waived by the Chief Recovery Officer).

27—Writing off bad debts

The Chief Recovery Officer is authorised under this clause to write off an amount payable under an expiation notice if there is no reasonable prospect of recovering the amount or the costs of recovery are likely to equal or exceed the amount to be recovered.

28—Enforcement of expiation notices in other jurisdictions

This clause authorises the Chief Recovery Officer to enter into multi-jurisdictional agreements with one or more other jurisdictions to establish and implement processes and procedures for the enforcement in other jurisdictions of expiation notices given in South Australia and the enforcement in South Australia of expiation notices given in other jurisdictions.

Part 5—Investigation powers

29—Personal details and investigation of financial position

This clause authorises the Chief Recovery Officer to—

require a debtor or alleged offender to provide personal details;

require another person to provide the personal details of a debtor or alleged offender;

investigate the means of a debtor or alleged offender (including by requiring the debtor or alleged offender to provide relevant documents or other materials).

30—Power to require information

A public sector agency or credit reporting body may be required under this clause to provide the Chief Recovery Officer with the contact details of a debtor or alleged offender. A public sector agency may also be required to produce documents or other material or information to the Chief Recovery Officer. Particular public sector agencies may be excluded from the application of the clause by the regulations.

31—Power to require identification

If an authorised officer has reasonable cause to suspect that a person may be a debtor or alleged offender, the person may be required under this clause to produce evidence of the person's identity.

32—Disclosure of information to prescribed interstate authority

This clause authorises the Chief Recovery Officer to disclose prescribed particulars of a debtor or alleged offender to a prescribed interstate authority.

Part 6—Charge on land

33—Charge on land

The Chief Recovery Officer may, under this clause, apply to the Registrar-General to register a charge over land owned by a debtor. The Chief Recovery Officer may also apply for a registration of a charge owned by an alleged offender if an enforcement determination has been made in relation to the relevant expiation notice.

The effect of a charge is as follows:

the Registrar-General must not register an instrument affecting the land over which the charge exists unless—

the instrument—

was executed before the entry was made; or

has been executed under or pursuant to an agreement entered into before the entry was made; or

relates to an instrument registered before the entry was made; or

the instrument is an instrument of a prescribed class; or

the instrument is expressed to be subject to the operation of the charge; or

the instrument is a duly stamped conveyance that results from the exercise of a power of sale under a mortgage, charge or encumbrance registered before the entry was made;

the Chief Recovery Officer (on behalf of the Crown) has the same powers in respect of the land over which the charge exists as are given by the Real Property Act 1886 to a mortgagee under a mortgage in respect of which default has been made in payment of money secured by the mortgage.

Part 7—Enforcement

Division 1—Enforcement action

34—Interpretation

This clause includes definitions of terms required for the purposes of Part 7.

35—Aggregation of monetary amounts for the purposes of enforcement

This clause provides for the aggregation of monetary amounts for the purposes of exercising powers under Part 7.

36—Seizure and sale of assets

This clause authorises the Chief Recovery Officer to make a written determination to sell land or personal property of a debtor or alleged offender to satisfy the monetary amount owed.

A determination of the Chief Recovery Officer under the clause authorises the Chief Recovery Officer to—

enter any land (using such force as may be necessary) on which the Chief Recovery Officer reasonably suspects personal property of the debtor or alleged offender is situated; and

seize and remove personal property found on the land that apparently belongs (wholly or partly) to the debtor or alleged offender; and

affix clamps or any other locking device to any vehicle that is to be seized and removed from the land in order to secure the vehicle until it can be so seized and removed; and

seize and remove any documents evidencing the title of the debtor or alleged offender to any real or personal property; and

place and keep any such personal property or documents in safe custody until completion of sale; and

sell real or personal property owned (whether solely or as a co-owner) by the debtor or alleged offender.

There are some limitations on the Chief Recovery Officer's powers, as follows:

the powers may not be exercised in relation to personal property, or property of a class, prescribed by the regulations;

this clause does not authorise the sale of land unless the monetary amount exceeds $10,000;

any amount realised from the sale of the personal property of the debtor or alleged offender in excess of the monetary amount owed by a debtor or alleged offender must be paid to the debtor or alleged offender by the Chief Recovery Officer;

the Chief Recovery Officer (on behalf of the Crown) has the same powers in respect of land the Officer determines to sell as are given by the Real Property Act 1886 to a mortgagee under a mortgage in respect of which default has been made in payment of money secured by the mortgage.

37—Garnishment

The Chief Recovery Officer may, under this clause, determine that money owing or accruing to a debtor or alleged offender from a third person, or money of a debtor or alleged offender in the hands of a third person, is to be attached to satisfy a monetary amount owed by the debtor or alleged offender.

38—Suspension of driver's licence

The Chief Recovery Officer may, under this clause, suspend the driver's licence (including a learner's permit) held by a debtor or alleged offender. Notice of a written determination to suspend a driver's licence must be given to the debtor or alleged offender. The Registrar of Motor Vehicles is also to be given notice of the determination. A licence suspension takes effect 14 days from (and including) the day on which the determination was given to the debtor or alleged offender and may be cancelled by the Chief Recovery Officer by written determination. The Chief Recovery Officer must cancel a licence suspension if all monetary amounts owed by the debtor or alleged offender are paid in full.

39—Restriction on transacting business with Registrar of Motor Vehicles

This clause provides that the Chief Recovery Officer may, by written determination, impose a prohibition on a debtor or alleged offender transacting any business with the Registrar of Motor Vehicles. Notice of a prohibition must be given to the debtor or alleged offender. A prohibition takes effect on the Registrar of Motor Vehicles being notified as required and may be cancelled by the Chief Recovery Officer by written determination. The Chief Recovery Officer must cancel a prohibition if all monetary amounts owed by the debtor or alleged offender are paid in full. While a prohibition under the clause continues in operation, the Registrar of Motor Vehicles will not process any application made by or on behalf of the debtor or alleged offender, whether the application was made before or after the prohibition took effect.

40—Suspension of section 97A of Motor Vehicles Act 1959

This clause provides that the Chief Recovery Officer may suspend the operation of section 97A of the Motor Vehicles Act 1959 insofar as it applies to a debtor or alleged offender specified in the notice. Section 97A authorises certain drivers visiting South Australia to drive in the State without holding a local licence. Notice of the Chief Recovery Officer's written determination to suspend the operation of section 97A must be given to the debtor or alleged offender. The suspension takes effect 14 days from (and including) the day on which the notification is given to the debtor or alleged offender. The Registrar of Motor Vehicles is also to be notified of the suspension. The suspension must be cancelled by the Chief Recovery Officer if all monetary amounts owed by the debtor or alleged offender are paid in full.

41—Clamping or impounding of vehicle

This clause provides for the clamping and impounding of vehicles owned by debtors and alleged offenders. The Chief Recovery Officer may determine to clamp or impound a vehicle that a debtor or alleged offender owns or is accustomed to drive or that was used in the commission of an offence or alleged offence. The period of clamping or impounding may be specified in the determination or may be until the Chief Recovery Officer determines to end the clamping or impounding.

42—Power to dispose of uncollected seized vehicles

This clause sets out procedures for disposal of a vehicle that apply when the vehicle ceases to be liable to be clamped or impounded but no person who is entitled to custody of the vehicle applies for release of the vehicle.

43—Seizure of number plates of vehicle

The Chief Recovery Officer is authorised under this clause to seize the number plates of a vehicle that a debtor or alleged offender owns or is accustomed to drive or that was used in the commission of an offence or alleged offence. Notice of the written determination to seize the number plates must be given to the debtor or alleged offender and each registered owner of the vehicle. The Chief Recovery Officer may not seize the number plates of a vehicle if the vehicle is situated in a public place or seizure of the number plates would cause undue inconvenience to a person other than the debtor or alleged offender. If all pecuniary sums owed by the debtor or alleged offender are not paid within 28 days of the day on which the vehicle's number plates are seized, the Chief Recovery Officer may dispose of the number plates by forwarding them to the Registrar of Motor Vehicles.

44—Publication of names of debtors and alleged offenders subject to enforcement action

This clause provides that the Chief Recovery Officer may cause a notice identifying a debtor or alleged offender who is subject to enforcement action to be published on a website determined by the Chief Recovery Officer and in some other manner determined by the Chief Recovery Officer.

45—Costs

If the Chief Recovery Officer incurs costs in relation to the exercise of enforcement powers and functions, the costs are added to and form part of the monetary amount owed by the debtor or alleged offender.

Division 2—Failure of enforcement process

46—Community service orders

This clause provides for the making of community service orders and orders requiring a debtor or alleged offender to complete an intervention program. The order can be made by the Court on application by the Chief Recovery Officer where the Court is satisfied that the debtor or alleged offender does not have, and is not likely within a reasonable time to have, the means to satisfy a monetary amount owed by the debtor or alleged offender without the debtor or alleged offender, or the dependants of the debtor or alleged offender, suffering hardship.

47—Community service and intervention program orders may be enforced by imprisonment

This clause provides for the enforcement by imprisonment of an order under clause 46 requiring community service or the completion of an intervention program. The clause authorises the court to issue a warrant of commitment but provides that the court may refrain from doing so if satisfied that a person's failure to comply with an order was trivial or that there are proper grounds on which the failure should be excused.

Part 8—Civil debt recovery

Division 1—Preliminary

48—Interpretation

This clause provides definitions for a number of terms used in Part 8.

Division 2—Recovery of civil debt

49—Notification of debt

This clause provides that a public authority may notify the Chief Recovery Officer of a debt owed to the authority by a debtor. The Chief Recovery Officer may then make a civil debt determination in relation to the debt. The Chief Recovery Officer must give written notification of the civil debt determination to the debtor and inform the debtor of the powers that can be used to recover the debt. The debtor must also be invited by the Chief Recovery Officer to enter into an arrangement for payment of the debt (such as an arrangement for payment of the debt by instalments). A civil debt determination may not be made by the Chief Recovery Officer if the Magistrates Court would not have jurisdiction to hear and determine a claim for the debt.

50—Application to Court in relation to debt

This clause provides a debtor who has received a civil debt determination with a right to apply to the Magistrates Court for revocation or variation of the determination. The public authority to which the debt is owed is the respondent to the application. The determination may be affirmed, varied or revoked by the Court.

51—Enforcement action

The Chief Recovery Officer may exercise the powers set out under Division 5 in relation to a debtor who has been notified of a civil debt determination if the debtor has not applied for the determination to be varied or revoked or entered into an arrangement as to the time and manner of payment of the debt (or such an arrangement has terminated) or if the determination has been confirmed or varied by the Court. However, the Chief Recovery is required to notify the debtor of a determination to exercise the power before it can be exercised. The power cannot be exercised if it is revoked.

52—Internal review of decision to take enforcement action

A debtor who has received an enforcement notice can apply for an internal review of the determination to which the notice relates. The Chief Recovery Officer may, on a review, make a decision confirming, varying or revoking the determination.

53—Review of decision to take enforcement action

If a decision to take enforcement action is confirmed or varied on an internal review, the debtor may apply to the Magistrates Court for review of the decision.

54—Effect of review proceedings on decision being reviewed

This clause provides that the commencement of an internal review, or proceedings for a review by the Court, does not affect the operation of the determination that is the subject of the review unless the reviewer makes an order staying or varying the operation of the determination.

55—Costs

This clause provides that costs incurred by the Chief Recovery Officer in relation to the exercise of powers and functions under Part 8 are added to and form part of the debt owed by the debtor.

56—Interest on debts

A debt that is the subject of a civil debt determination bears interest at the rate prescribed under the rules of the Magistrates Court for the purposes of section 35(1) of the Magistrates Court Act 1991 .

Division 3—Payment by instalments

57—Voluntary arrangement as to time and manner of payment

Under this clause, a debtor may, at any time, if the debtor pays, or agrees to pay, the prescribed fee, enter into an arrangement with the Chief Recovery Officer—

for payment of the debt by instalments over a period determined by the Chief Recovery Officer (being not more than 12 months from the date on which the arrangement is entered into); or

for the taking of a charge over land; or

for the surrender of property to the Chief Recovery Officer.

Division 4—Investigation powers

58—Investigation of debtor's financial position

This clause provides the Chief Recovery Officer with a power to require a debtor to provide the Chief Recovery Officer with the debtor's personal details. The Chief Recovery Officer may also require a person who the Chief Recovery Officer has reasonable cause to believe that a person has knowledge of personal details of a debtor to provide personal details of the debtor that are known to the person. Furthermore, the Chief Recovery Officer may, for the purposes of determining a debtor's means of satisfying the debt, require the debtor, or another person who may be able to assist with the investigation, to appear for examination before the Chief Recovery Officer or to produce documents relevant to the investigation to the Chief Recovery Officer.

59—Power to require information

A public sector agency or credit reporting body may be required under this clause to provide the Chief Recovery Officer with the contact details of a debtor. A public sector agency may also be required to produce documents or other material or information to the Chief Recovery Officer. Particular public sector agencies may be excluded from the application of the clause by the regulations.

Division 5—Enforcement action

Subdivision 1—Preliminary

60—Aggregation of debts for the purposes of enforcement

Any number of debts owed by a debtor that are the subject of a civil debt determination may be aggregated for the purposes of exercising powers under Division 5.

Subdivision 2—Action requiring formal determination

61—Requirement for payment of instalments etc

The Chief Recovery Officer may determine under this clause that a debtor is to pay instalments towards the satisfaction of a debt owed by the debtor. The relevant enforcement notice must specify the amount and regularity of the instalments. If the debtor is a natural person, the Chief Recovery Officer must conduct an investigation into the debtor's means of satisfying the debt unless the Chief Recovery Officer is satisfied that there are, in the circumstances of the case, proper reasons for dispensing with such an investigation. In determining whether a debtor who is a natural person should be required to pay instalments towards the satisfaction of the debt, the Chief Recovery Officer should have due regard to evidence placed before the Officer as to—

the debtor's means of satisfying the debt; and

the necessary living expenses of the debtor and the debtor's dependants; and

other liabilities of the debtor.

62—Garnishment

The Chief Recovery Officer may determine under this clause that money owing or accruing to a debtor from a third person, or money of a debtor in the hands of a third person, is to be attached to satisfy a debt owed by the debtor. If the Chief Recovery Officer makes or varies a determination under this clause, the garnishee may seek internal review of the determination or the decision to vary the determination.

63—Seizure and sale of property

The Chief Recovery Officer may make a determination under this clause to sell land or personal property of a debtor to satisfy the debt owed by the debtor. The Chief Recovery Officer may, pursuant to a determination under this clause—

enter the land (using such force as may be necessary for the purpose) on which property to which the determination relates, or documents evidencing title to such property, are situated; and

seize and remove any such property or documents; and

place and keep any such property or documents in safe custody until completion of the sale; and

sell any property to which the determination relates (whether or not the Chief Recovery Officer has first taken steps to obtain possession of the property).

64—Charge on land

The Chief Recovery Officer may, under this clause, determine that real property of a debtor is to be charged with some or all of the debt owed by the debtor. If such a determination is made, the Chief Recovery Officer may apply to the Registrar-General to register a charge over land owned by a debtor.

The effect of a charge is as follows:

the Registrar-General must not register an instrument affecting the land over which the charge exists unless—

the instrument—

was executed before the entry was made; or

has been executed under or pursuant to an agreement entered into before the entry was made; or

relates to an instrument registered before the entry was made; or

the instrument is an instrument of a prescribed class; or

the instrument is expressed to be subject to the operation of the charge; or

the instrument is a duly stamped conveyance that results from the exercise of a power of sale under a mortgage, charge or encumbrance registered before the entry was made;

the Chief Recovery Officer (on behalf of the public authority to whom the debt is owed) has the same powers in respect of the land over which the charge exists as are given by the Real Property Act 1886 to a mortgagee under a mortgage in respect of which default has been made in payment of money secured by the mortgage.

65—Charge over other property

This clause provides that the Chief Recovery Officer may determine that property of a debtor is to be charged with part or all of the debt owed by the debtor. If such a determination is made, the Chief Recovery Officer may—

do anything necessary to ensure that the charge is registered; or

make any necessary consequential determination (which will have effect according to its terms) prohibiting or restricting dealings with the property subject to the charge; or

take any other action authorised by regulations.

Subdivision 3—Appointment of receiver

66—Appointment of receiver

The Chief Recovery Officer may apply to the Magistrates Court for the appointment of a receiver for the purpose of recovering a debt. If a receiver is appointed, the Court may make orders—

conferring on the receiver powers—

to take charge of property of the debtor;

to dispose of property of the debtor;

to divert income (other than income from employment or a pension) towards satisfaction of the debt;

to take charge of, and carry on, a business of the debtor and apply proceeds from the business towards satisfaction of the debt;

to do anything reasonably necessary for, incidental to, or consequential on, the above; or

providing for accounts to be rendered by the receiver; or

providing for the remuneration of the receiver; or

relating to any other incidental or consequential matter.

Part 9—Authorised officers

67—Authorised officers

The Minister is authorised under this clause to appoint authorised officers for the purposes of the enforcement of the measure. An appointment may be made subject to conditions limiting the powers exercisable by the authorised officer. A condition of an appointment may be varied or revoked, and an appointment may be revoked.

68—Identification of authorised officers

This clause requires that authorised officers be issued with identity cards. An authorised officer must produce the officer's identity card for inspection at the request of a person in relation to whom the officer plans to exercise powers.

69—Hindering authorised officer or assistant

This clause makes it an offence for a person to hinder an authorised officer, or a person assisting an authorised officer, in the exercise of powers under the Act.

Part 10—Miscellaneous

70—Minister may declare amnesty from payment of costs, fees and charges

This clause authorises the Minister to declare an amnesty from the payment of the whole or any part of costs, fees and other charges under the measure or the repealed Criminal Law (Sentencing) Act 1988. An amnesty must be declared by notice in the Gazette and applies to a debtor or class of debtors, and to an extent, specified in the notice.

71—Power of delegation—intervention program manager

This clause authorises intervention program managers to delegate powers or functions under the Act.

72—Liability

This clause provides that no civil liability is incurred by the Crown, the Chief Recovery Officer or a public sector employee in respect of the exercise, or purported exercise, of powers or functions under the Act.

73—Chief Recovery Officer may be assisted by others

This clause provides that the Chief Recovery Officer or an authorised officer may, in the exercise of powers or functions under the Act, be assisted by other persons (including a police officer).

74—Notice of determination

Where the Chief Recovery Officer is required to give notice of an arrangement or determination to a person, the notice must be in writing and specify reasons for the arrangement or determination.

75—Service of notices etc

This clause sets out service requirements. A notice, determination or other document may be given or served personally, by post or by email transmission. If the Chief Recovery Officer is required to give or serve a notice, determination or other document on a person but the whereabouts of the person cannot be ascertained, the following requirements apply:

the Chief Recovery Officer must publish details of the notice, determination or other document on a website determined by the Chief Recovery Officer (and on publishing such details the Chief Recovery Officer will, for the purposes of the Act, be taken to have given the person, or served the person with, the notice, determination or document);

however, if the person is a youth, is subject to a suppression order or is a protected person, the requirement to give the person, or serve the person with, the notice, determination or other document does not apply but—

the Chief Recovery Officer may cause details of the notice, determination or other document to be provided to the person by any other means reasonably available that do not involve public disclosure of the name of the person; and

on providing such details the Chief Recovery Officer will, for the purposes of this Act, be taken to have given the person, or served the person with, the notice, determination or document.

76—Regulations

The regulation making power authorises the Governor to make regulations contemplated by, or necessary or expedient for the purposes of, the Act. The regulations may—

be of general or limited application; and

make different provision according to the persons, things or circumstances to which they are expressed to apply; and

provide that a specified provision of the Act does not apply, or applies with prescribed variations, to a specified person, circumstance or situation (or person, circumstance or situation of a prescribed class), subject to any condition to which the regulations are expressed to be subject; and

provide that any matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister, the Chief Recovery Officer or another prescribed person.

The clause authorises the making of regulations of a savings or transitional nature consequent on the commencement of any provisions of the Act.

Schedule 1—Related amendments and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Cross-border Justice Act 2009

2—Amendment of section 7—Interpretation

3—Amendment of section 68—Proceedings that may be heard in another participating jurisdiction

4—Amendment of section 120—Terms used in this Part

5—Amendment of section 121—Request to enforce fine in another participating jurisdiction

6—Amendment of section 122—Effect of making request

7—Amendment of section 125—Resumption of enforcement by Fines Director

8—Amendment of section 127—Effect of registration

9—Amendment of section 129—Receipt of money by Fines Director

10—Amendment of section 130—Request to cease enforcement of fine

These clauses make amendments consequential on the enactment of this measure and the Sentencing Act 2017.

Part 3—Amendment of Expiation of Offences Act 1996

11—Amendment of section 4—Interpretation

This clause amends the interpretation section of the Expiation of Offences Act 1996 to insert a definition of Chief Recovery Officer and makes other consequential amendments.

12—Amendment of section 8—Alleged offender may elect to be prosecuted etc

This clause makes consequential amendments to section 8. An additional amendment provides that where an enforcement determination made under section 22 of the Fines Enforcement and Debt Recovery Act 2017 is revoked on the ground that the alleged offender had not had a reasonable opportunity to elect to be prosecuted for an offence, the alleged offender may make an election to be prosecuted for the offence within 14 days of being notified of the revocation.

13—Amendment of section 8A—Review of notices on ground that offence is trifling

This clause makes consequential amendments to section 8A. An additional amendment provides that where an enforcement determination made under section 22 of the Fines Enforcement and Debt Recovery Act 2017 is revoked on the ground that the alleged offender had not had a reasonable opportunity to apply for review of the notice, the alleged offender may make an election to be prosecuted for the offence within 14 days of being notified of the revocation.

14—Repeal of section 9

15—Amendment of section 11—Expiation reminder notices

16—Amendment of section 11A—Expiation enforcement warning notices

17—Amendment of section 12—Late payment

18—Repeal of sections 13 to 14B

The amendments made by these clauses are consequential.

19—Amendment of section 16—Withdrawal of expiation notices

Section 16 is amended by this clause by the addition of a new ground on which an issuing authority may withdraw an expiation notice so that a notice may be withdrawn if the authority is of the opinion that the alleged offender is suffering from a cognitive impairment. Cognitive impairment is defined to include the following:

a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);

a mental illness.

20—Amendment of section 18—Provision of information

21—Repeal of sections 18B to 18E

The amendments made by clauses 20 and 21 are consequential.

22—Insertion of section 19A

Proposed section 19A provides that a notice, determination or other document required or authorised to be given or served under the Act may be given or served personally, by post or by transmitting it by email to an email address provided by the intended recipient (in which case the notice, determination or document will be taken to have been given or served at the time of transmission).

23—Amendment of section 20—Regulations

This amendment is consequential.

Part 4—Amendment of Magistrates Court Act 1991

24—Amendment of section 7A—Constitution of Court

25—Amendment of section 9A—Petty Sessions Division

The amendments made by clauses 24 and 25 to the Magistrates Court Act 1991 are consequential.

Part 5—Amendment of Motor Vehicles Act 1959

26—Insertion of section 61A

Proposed section 61A relates to clause 43 of the measure. The Chief Recovery Officer may, under that clause, forward seized number plates to the Registrar. If that occurs, the Registrar may cancel the registration of the vehicle and must then make the required refund of the registration fee (or part of the registration fee).

27—Amendment of section 93—Notice to be given to Registrar

The amendments made by this clause are consequential.

28—Amendment of section 97A—Visiting motorists

The amendment to section 97A made by this clause relates to clause 40 of the measure. The Chief Recovery Officer may, under that clause, determine that the operation of section 41 of the Motor Vehicles Act 1959 is suspended insofar as it applies to a specified person. Proposed subsection (2c) of section 97A provides that subsection (1) of that section does not apply to the person while the Chief Recovery Officer's determination is in force.

29—Amendment of section 139D—Confidentiality

The amendment made by this clause is consequential.

Part 6—Amendment of Summary Procedure Act 1921

30—Amendment of section 52—Limitation on time in which proceedings may be commenced

This amendment is consequential on the insertion of section 19A into the Expiation of Offences Act 1996 by clause 22.

Part 7—Amendment of Victims of Crime Act 2001

31—Amendment of section 28—Right of Attorney-General to recover money paid out from offender etc

The amendments made by this clause are consequential.

32—Amendment of section 32—Imposition of levy

This clause amends section 32 to make it clear that the Chief Recovery Officer or an issuing authority may recover a levy before it becomes payable under the section.

Part 8—Transitional provisions

33—Transitional provisions

This clause makes provision for transitional arrangements consequential on the enactment of this measure.

Debate adjourned on motion of Hon. D.W. Ridgway.